Nathan Murphy v. James Utter

• Citation: 186 U.S. 95,46 L.Ed. 1070,22 S.Ct. 776
• Decision Date: 19 May 1902
• Docket Number: No. 388,388
• Parties: NATHAN O. MURPHY et al., Appts. , v. JAMES L. UTTER et al
• Court: U.S. Supreme Court

186 U.S. 95

22 S.Ct. 776

46 L.Ed. 1070

NATHAN O. MURPHY et al., Appts.,

v JAMES L. UTTER et al.

No. 388.

Argued March 7, 10, 1902.

Decided May 19, 1902.

Messrs. This was an appeal by the loan commissioners of Arizona from a judgment of the supreme court of that territory rendered March 22, 1901, granting a peremptory writ of mandamus and commanding such loan commissioners, upon the tender by plaintiffs of $150,000 bonds of the county of Pima with coupons attached, described in the petition, to issue and deliver to the petitioners refunding bonds of the territory pursuant to certain acts of Congress.

The facts of the case are substantially as follows: By an act of the legislature of Arizona of February 21, 1883, the county of Pima in that territory was authorized to issue $200,000 of bonds in aid of the construction of the Arizona Narrow Gauge Railroad Company, to which company the bonds were made payable. The entire issue was declared to be void by this court in Lewis v. Pima County, 155 U. S. 54, 39 L. ed. 67, 15 Sup. Ct. Rep. 22. This decision was pronounced in October, 1894.

Prior to this decision, however, owing to doubts that were entertained as to the validity of bonds issued in aid of railroads, the legislature of Arizona in 1887 and Congress in 1890 passed certain acts authorizing the refunding of territorial bonds, which had been authorized by law, and, in compliance with a memorial submitted by the legislature of Arizona, Congress passed a further act in 1896 authorizing the refunding of all outstanding bonds of the territory, and its municipalities, which had been authorized by legislative enactments, and also confirming and validating the original bonds, which by the 1st section were authorized to be refunded.

Thereupon, and on December 31, 1896, James L. Utter and Elizabeth B. Voorhies filed the petition involved in this case for a writ of mandamus to compel the loan commissioners to issue refunding bonds in exchange for those originally issued by the county of Pima in aid of the Narrow Gauge Railroad Company. Defendants demurred to the petition, and for answer thereto averred that the bonds of Pima county, held by the petitioners, had been declared, both by the supreme court of the territory, and by this court, to be void, and therefore that the petition should be dismissed. They also interposed a plea of res judicata. The petition being denied by the supreme court of Arizona, the relators appealed to this court, which reversed the order of the supreme court of the territory, and remanded the case to that court for further proceedings. Utter v. Franklin, 172 U. S. 416, 43 L. ed. 498, 19 Sup. Ct. Rep. 183. This decision was made in January, 1899.

Thereupon, and on June 1, 1899, after the case was remanded to the supreme court of Arizona, respondents, by leave of the court, filed an amended return to the effect that the bonds and coupons sought to be refunded were not delivered by anyone authorized by Pima county to do so; that the county never acknowledged the validity of the bonds or paid interest thereon; that the railroad, the construction of which the legislature intended to promote by the issue of the bonds, was never constructed, equipped, or operated; that Pima county never re- ceived any consideration whatever for the bonds; that they had been declared void by this court; that petitioners were not innocent holders of them; that the bonds and coupons were not sold or exchanged in good faith, and in compliance with the act of the legislature by which they were authorized, and that they were not intended to be included, and were not included, in the act of Congress of 1896, or any act or memorial of the legislative assembly of the territory. The return also set up the statute of limitations; that the personnel of the loan commission had been wholly changed; that the act authorizing the employment of loan commissioners had been repealed and no longer existed, and numerous defenses which had not been made or set up in the original answer or return.

Petitioners thereupon moved to strike the amended return from the files on the ground that the same had been filed without leave of the court, and that under the decision of this court in Utter v. Franklin no new defenses could be considered. The supreme court of the territory, however, overruled the motion and permitted the amended return to be filed, to which ruling petitioners excepted. But, instead of applying to this court for a writ of mandamus to carry its mandate into effect, they proceeded with the case in the supreme court of the territory, and filed a reply to the amended return. A referee was appointed, testimony taken, and the supreme court of the territory made a finding of facts set out in the record, and awarded a peremptory writ of mandamus directing the refunding of the bonds. From this judgment defendants appealed to this court.

Meantime, however, Elizabeth B. Voorhies, one of the petitioners, had died, and her executors were ordered by this court to be substituted.

Rochester Ford, John G. Carlisle, and C. F. Ainsworth for appellants.

Messrs. John F. Dillon, Harry Hubbard, John M. Dilliam H. Barnes for appellees.

Mr. Justice Brown delivered the opinion of the court:

While upon the former hearing of this case, under the name of Utter v. Franklin, 172 U. S. 416, 43 L. ed. 498, 19 Sup. Ct. Rep. 183, the order of the supreme court of Arizona denying a writ of mandamus was reversed, and the case remanded for further proceedings, we expressed the opinion 'that it was made the duty of the loan commissioners by these acts to fund the bonds in question.' The logical inference from this was that a writ of mandamus should issue at once. True, the case was argued upon demurrer, but as the demurrer was accompanied by a plea of res judicata, which was expressly held to be untenable (p. 424, L. ed. p. 501, Sup. Ct. Rep. p. 186), it is a serious question whether the defendant should have been permitted to set up new defenses without the leave of this court. Re Potts, 166 U. S. 263, 267, 41 L. ed. 994, 996, 17 Sup. Ct. Rep. 520; Ex parte Union S. B. Co. 178 U. S. 317, 44 L. ed. 1084, 20 Sup. Ct. Rep. 904; Wayne County v. Kennicott, 94 U. S. 498, 24 L. ed. 260; New Orleans v. Warner, 180 U. S. 199, 203, 45 L. ed. 493, 495, 21 Sup. Ct. Rep. 353; Stewart v. Salamon, 94 U. S. 434, 24 L. ed. 275; Gaines v. Rugg, 148 U. S. 228, sub nom. Gaines v. Caldwell, 37 L. ed. 432, 13 Sup. Ct. Rep. 611. The reason for such a course applies with special cogency to this case in view of the statute of Arizona (Rev. Stat. 1887, § 734), declaring that the 'defendant in his answer may plead as many several matters, whether of law or fact, as may be necessary for his defense, and which may be pertinent to the cause, but such pleas shall be stated in the following order, and filed at the same time: 1. Matters denying the jurisdiction of the court. 2. Matters in the abatement of a suit. 3. Matters denying the sufficiency of the complaint, or of any cause of action therein, by demurrer, general or special. 4. Matters in bar of the action. 5. Matters of counterclaim and set-off.'

Of the numerous defenses upon the merits set up in the amended return, but two are pressed upon our attention, namely, whether the petition abated by a change of the personnel of the loan commission, or by a repeal of the act abolishing the commission altogether.

1. The court was correct in holding that the change in the personnel of the commission did not abate the proceeding, which was not taken against the individuals as such, but in their official capacity as loan commissioners. The original petition was entitled and brought by Utter and Voorhies, plaintiffs, against 'Benjamin J. Franklin, C. P. Leitch, and C. M. Bruce, loan commissioners of the territory of Arizona,' and the prayer was for a writ of mandamus requiring the defend- ants, 'acting as the loan commissioners of the territory,' to issue the refunding bonds.

The question when a suit against an individual in his official capacity abates by his retirement from office has been discussed in a number of cases in this court, and a distinction taken between applications for a mandamus against the head of a department or bureau for a personal delinquency, and those against a continuing municipal board with a continuing duty, and the delinquency is that of the board in its corporate capacity. The earliest case is that of The Secretary v. McGarrahan, 9 Wall. 298, sub nom. Cox v. United States ex rel. McGarrahan, 19 L. ed. 579, which was a writ of mandamus against Mr. Browning, then Secretary of the Interior, in which it appeared that Mr. Browning had resigned some months before the decision of the court was announced. It was held that the suit abated by his resignation, because he no longer possessed the power to execute the commands of the writ, and that his successor could not be adjudged in default, as the judgment was rendered against him without notice or opportunity to be heard. The same question was more fully considered in United States v. Boutwell, 17 Wall. 604, 21 L. ed. 721, in which it was held that a mandamus against the Secretary of the Treasury abated on his death or retirement from office, and that his successor could not be brought in by way of amendment or order of substitution. Said Mr. Justice Strong: 'But no matter out of what facts or relations the duty has grown, what the low regards and what it seeks to enforce by a writ of mandamus is the personal obligation of the individual to whom it addresses the writ. If he be an officer, and the duty be an official one, still the writ is aimed exclusively against him as a person, and he only can be punished for disobedience. The writ does not reach the office. It cannot be directed to it. It is, therefore, in substance a personal action, and it rests upon the averred and assumed fact that the defendant has neglected or refused to perform a personal duty, to...